Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

Berkeley District's Student Diversity Plan Upheld

A school district may consider neighborhood demographics when assigning students to school, a California state appellate court has ruled.

The unanimous decision by a three-judge panel of the California Court of Appeal is a victory for the student assignment plan of the Berkeley Unified School District. And it upholds a race-conscious assignment plan that doesn't rely on any individual's student's racial background.

The district's diversity plan for elementary schools divides the district into 445 planning areas, which are four- to eight-block areas that receive a diversity rating based on average household income, education level of adults, and the proportion of minority group members residing in the area.

Every student from a given planning area receives the same diversity score, regardless of the individual's race or background. The diversity scores can come into play when assigning students to schools as the district seeks to achieve certain diversity goals.

The plan was challenged under Proposition 209, the 1996 California ballot initiative that amended the state constitution to prohibit the state and local governments from granting racial preferences "to any individual or group."

The appellate court said the Berkeley plan does not grant preferences based on an individual's race, and the reference to a group preference did not apply to the neighborhood plan.

Although this case was decided on California constitutional grounds, the Berkeley plan seems to be the kind of creative use of demographics that diversity advocates have argued would be permitted under the equal-protection clause of the 14th Amendment to the U.S. Constitution, and under the U.S. Supreme Court's 2007 ruling in Parents Involved in Community Schools v. Seattle School District No. 1. That ruling sharply curtailed the permissible uses of race by school districts in assigning students to schools.